E-discovery Day is Upon Us – Insight from the Field

November 13, 2018by Robert Cruz

Just finished a terrific week with some of our most important clients, discussing key challenges and best practices they see emerging in the areas of capturing and controlling new communications sources. We talked with firms large and small, US-based and multi-national, but the conclusion was the same: the ways that they communicate externally and collaborate internally has undergone a fundamental and irreversible revolution. Much of this change is driven by user demands to communicate through the communications channels of their choice – whether it be the latest messaging app, or a tool like WeChat that has seen exploding adoption by your clients in other parts of the world. Another part is driven by IT itself, as they move their organizations to Office365, Slack, Cisco Webex Teams, or other attempts to standardize on specific collaboration platforms.

When these discussions moved to the topic of how organizations are preparing for the realities of
e-discovery and investigations, the mood noticeably changed. The questions below noticeably sucked the air out of the meeting room:

“How do you retrieve messages that were posted 6 months ago directly from a social media provider or mobile carrier?”

“What is your plan to collect video, voice, and other meeting room content from Microsoft Teams?”

“Have you discovered conversations with phrases like “TOL”, “LDL” or encoded with emojis?”

What struck me was that these questions no longer reflect a George Jetson, future-state with self-driving cars and AI-driven robot maids. Instead, they reflect the rich, dynamic, multi-modal communications and collaborative tools that your firm’s employees are using right now – a revolution where conversations are broadcast live on Skype for Business, Facebook, YouTube, and Webex Teams (and likely recorded by Alexa).

So, is this a representative sample? That’s not clear, as the primary reason companies engage with us is to address the control of new communications sources. However, the evidence is beginning to suggest that the revolution is spreading. For example:

In a recent Tweet, e-discovery luminary Craig Ball notes that “Evidence today gravitates more to data than documents; numbers more than words Humans don’t read data well, and TAR’s too tied to words. Upshot: We’re using better tools to look at the wrong evidence. It’s the Streetlight Effect: Looking where it’s easy, not where it’s best.”

Craig’s point that today’s discovery is more about data than documents truly hits the mark. For both e-discovery and regulatory compliance, organizations have built workflows and deployed technologies that are primarily designed for the capture and review of email, files and documents. Unfortunately, many of these technologies handle rich, dynamic content sources with the same rudimentary approach – namely, to flatten into a messaging format. Simply threading messages together or applying predictive analytics cannot effectively account for things like altered or deleted message content, emoji sentiments or understanding content within rich media sources. It is not surprising that e-discovery technology developers are actively attempting to build “connectors” that will provide a starting point to better respond to these sources.

So, what are firms doing to prepare for this e-discovery revolution? Several best practices we see emerging include:

Updating policies – the use of new networks by employees must be governed by corporate communications policies. Many organizations are now dusting off outdated policies to make sure they reflect the breadth and variety of communications modalities that employees have access to today, including those that live uniquely on mobile devices.

Understanding options – Proactively capturing employee communications is becoming a policy decision that more firms are embracing, but is obviously not for everyone. For those that will continue to rely on reactive collection, the undisputed reality is that every communications tool is different. Some have available APIs, some have available third-party tools to assist in collection, and a few have supportive vendors who will provide meaningful assistance if that data requires collection for e-discovery. But significant gaps exist that firms should be aware of as they update their discovery playbooks to account for these sources.

Expansion of custodian data maps – Building data maps for custodians who work for firms that today support more than 40 different communications tools is no small task – and is problematic if done directly in advance of a matter. Each network has unique identifiers, buddy or screen names that need to be directly mapped to corporate directory naming conventions. The key here is to think of the custodian holistically, and to build the list of communications sources that they have been granted access to, versus defaulting to those sources that may be most prevalent in a specific matter.

Participation in evaluation of new communications tools – we see more legal teams actively participating in cross-functional evaluation of new tools before they are unleashed to users. Compliance, IT, InfoSec, and legal should all be engaged in assessing the risks of new networks in balancing against the user needs for greater productivity and client engagement

Learning plans of discovery vendors – as noted, today’s leading e-discovery tool providers are all acknowledging the changes in today’s communications sources. Each is investing, so staying apprised of their product road maps, partnerships, and use of analytics to address the revolution has never been more critical

We’ll discuss each of these topics in more detail in a post to follow.

Robert Cruz is Senior Director of Information Governance for Smarsh. He has more than 20 years of experience in providing thought leadership on emerging topics including cloud computing, information governance, and discovery cost and risk reduction.

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